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Can My Employer Discriminate Against Me Because I Have the Coronavirus?

| March 30, 2020

COVID-19 Maryland employment lawyer explains your rights as an employee

Now that the coronavirus is well established in the United States, the fear of infection is becoming widespread, and understandably so. Local, state and federal governments are taking steps to fight the spread of the coronavirus. But so are private businesses, such as those in Baltimore and the surrounding areas in Maryland and Washington, D.C.

This brings up the issue of employers treating employees differently because they have the coronavirus. Can employers do this and is it legal? The short answer is yes and yes. But there are caveats that employers need to be aware of to avoid running afoul of local, state and federal anti-discrimination laws.

If you find yourself the victim of workplace discrimination due to the coronavirus, it’s still possible that you are the victim of unlawful employment discrimination. To learn more about what your employer can or cannot do, read the following blog post and consider speaking with an experienced Maryland employment lawyer from the Law Firm of J.W. Stafford.

Can My Employer Discriminate Against Me Because I Have the Coronavirus?

Yes. In certain situations, your employer may treat you differently because you have the coronavirus. Simply being a carrier of the coronavirus (SARS-CoV-2) or having the disease caused by the coronavirus (COVID-19) does not put you into a protected class. A protected class refers to a legally recognized group of people that share a characteristic that is protected by law. Common examples of protected classes include race, disability, national origin, religion, age and sex.

Additionally, employers have a duty to maintain a safe working environment. Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSH Act) requires that employers protect employees from “recognized hazards that are causing or are likely to cause death or serious physical harm…” One way for employers to do this is to keep employees infected with the coronavirus (or who may be infected) away from the workplace or require them to take special steps before they may return to work.

Because I have the Coronavirus, my Employer Can Do Anything They Want to Me?

Not exactly. If you were to have the coronavirus and suffer from extremely severe symptoms, then your COVID-19 diagnosis may be a disability that’s recognized by the Americans with Disabilities Act of 1990 (ADA). Assuming the ADA applies to you and your employer, you will have some protections against discrimination, although your employer can still treat you differently in certain circumstances.

For example, imagine you’re receiving treatment at a hospital and for the next few weeks and you cannot come into work. Also, assume that your job requires you to be at work. In other words, working from home or the hospital is not possible. In this situation, your employer may be able to fire you.

Note, however, that Congress recently passed the Families First Coronavirus Response Act (“FFCRA”) which takes effect April 2, 2020. Under the FFCRA, which expires on December 31, 2020, employees that work for private employers with fewer than 500 employees receive expanded employment protections, including paid sick leave and expanded job-protected leave. For example, if you are a full-time employee at one of these covered employers, your employer is required to provide paid leave up to 80 hours (at a maximum of $511/day) if you have to miss work and are unable to telework because, among other reasons, you are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.

Likewise, the FFCRA dramatically expands the rights of employees to take job-protected leave as a result of COVID-19. Specifically, if you work for an employer with fewer than 500 employees and you have been employed for 30 calendar days, you can take job-protected leave if you are unable to work (or telework) because you have to care for your son or daughter as a result of their school or daycare being closed or the childcare provider for your son or daughter is unavailable due to a public health emergency related to COVID-19. Moreover, after 10 days on COVID-19 FMLA leave, your employer is supposed to pay you for that leave at 2/3 of your usual rate of pay (capped at $200/day or $10,000 total per employee).

Because of the breadth of this recently passed legislation, we encourage you to click here for a more in-depth discussion of the FFCRA or that you contact an experienced Maryland employment lawyer. In short, your employer cannot do anything that they want.

What If I’m the Victim of Discrimination Because My Employer Only Thinks I Have the Coronavirus?

The answer to this question depends on why your employer thinks you may have an infection. If they think that because you’re Asian, Italian or of a certain race or nationality they associate with the coronavirus, then this discrimination is illegal. Discrimination based on race or national origin is illegal under federal law for employers with 15 or more employees.

But if your employer thinks you may be infected because you just came back from a trip to China or Italy, then your employer treating you differently to keep its workplace as safe as possible may be permissible by law.

Still Unsure About Your Employment Rights Due to the Coronavirus? A Maryland Employment Lawyer is Available to Answer Your Questions.

If you think you may be the victim of unfair and unreasonable treatment because of the coronavirus, contact the Law Firm of J.W. Stafford or call our office to speak with an experienced and Maryland employment lawyer. They can assess your situation and determine what rights you have against your employer.